Foster v State of Queensland - [2006] FCA 1680

FEDERAL COURT OF AUSTRALIA
Foster v State of Queensland [2006] FCA 1680
PRACTICE AND PROCEDURE – application for leave to appeal from an order granting a permanent stay pursuant to Order 20, rule 2(1)(c) of the Federal Court Rules, of particular claims in two proceedings – consideration of whether the effluxion of time in conjunction with the dissipation of evidence probative of aspects of the controversy of fact gives rise, objectively, to an abuse of process.
HUMAN RIGHTS – RACIAL DISCRIMINATION – consideration of ss 9 and 15 of the Racial Discrimination Act 1975 (Cth) – consideration of the essential integers comprising a contravention of s 9 of the Racial Discrimination Act 1975 (Cth) – consideration of Baird v State of Queensland [2006] FCAFC 162.
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46 PO
Racial Discrimination Act 1975 (Cth), ss 9 and 15
Aborigines Act 1971 (Qld)
Federal Court Rules, Order 20, rule 2(1)(c)
Décor Corporation Pty Ltd v Dart Industries Inc. (1991-1992) 33 FCR 397
Baird v State of Queensland [2006] FCAFC 162
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54
Baird v State of Queensland (No. 1) (2006) 224 ALR 541
Batistatos v Road and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425
Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344
FOSTER & ANOR v STATE OF QUEENSLAND AND BETWEEN BISMARK & ORS v STATE OF QUEENSLAND
QUD420 OF 2006
GREENWOOD J
5 DECEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD420 OF 2006

BETWEEN:

DAPHNE FOSTER
First Applicant

CHRISTINE NED
Second Applicant

AND:

STATE OF QUEENSLAND
Respondent

BETWEEN:

MICHAEL BISMARK
First Applicant

DAPHNE FOSTER
Second Applicant

JEAN FRASER
Third Applicant

GLORIA FRIDAY
Fourth Applicant

NOREEN GEORGE
Fifth Applicant

EDWARD DAVID JOHNSON
Sixth Applicant

KAREN JUPITER
Seventh Applicant

CHRISTINE NED
Eighth Applicant

ELEANOR O'KEEFE
Ninth Applicant

ELSA JOAN PETER
Tenth Applicant

ERICA COLLEEN PETER
Eleventh Applicant

AVIS SAMBO
Twelfth Applicant

ROBYN ANN SANDY
Thirteenth Applicant

WINSOME WALDEN
Fourteenth Applicant

BARBARA LILIAN WALDEN
Fifteenth Applicant

AND:

STATE OF QUEENSLAND
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

5 DECEMBER 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Leave be granted to the applicants to appeal from the order of her Honour Justice Collier made on 28 September 2006 which effects a permanent stay of proceedings brought by each of the applicants in QUD279 of 2004 and QUD389 of 2005 of claims based upon allegations of discrimination against each of them pursuant to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth), in relation to the claim made by the applicants in QUD279 of 2004 and QUD389 of 2005 that the respondent discriminated against each of them in contravention of s 9 of the Racial Discrimination Act 1975 (Cth) through the payment by the respondent to any manifestation of the Christian Brethren Church including the Christian Brethren of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Foster v State of Queensland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FCA 1680
Decision Date: 5 DECEMBER 2006

CaseChat Overview and Summary

The applicants, Foster and another, sought leave to appeal against an order that permanently stayed their claims for discrimination against the State of Queensland. The applicants alleged that they were discriminated against on racial grounds under the Racial Discrimination Act 1975 (Cth) in relation to their employment with the Christian Brethren Church, which received government grants. The lower court found in favour of the respondent, the State of Queensland, and issued a permanent stay of proceedings.

The primary legal issues before the court were whether the applicants had standing to appeal the permanent stay and whether the leave to appeal and the extension of time should be granted. The applicants argued that the lower court had erred in its application of the law and that the stay of proceedings was inappropriate. The respondent, the State of Queensland, opposed the application on the grounds that the applicants did not have standing to appeal and that the extension of time should not be granted.

The court found that the applicants had standing to appeal the permanent stay of proceedings. It was noted that the applicants had a legitimate interest in pursuing their claims of racial discrimination. The court also found that the applicants had demonstrated sufficient grounds for an extension of time. The court granted leave to appeal and extended the time for the filing of the application for leave to appeal. The costs of and incidental to the application for leave to appeal and the application for leave to extend time were ordered to be costs in the cause.

The orders granted leave to the applicants to appeal from the order of Justice Collier, extended the time for the filing of the application for leave to appeal, and ordered the costs of and incidental to the application for leave to appeal and the application for leave to extend time to be costs in the cause.

Orders

Orders of the court

1. Leave be granted to the applicants to appeal from the order of her Honour Justice Collier made on 28 September 2006 which effects a permanent stay of proceedings brought by each of the applicants in QUD279 of 2004 and QUD389 of 2005 of claims based upon allegations of discrimination against each of them pursuant to ss 9 and 15 of the Racial Discrimination Act 1975 (Cth), in relation to the claim made by the applicants in QUD279 of 2004 and QUD389 of 2005 that the respondent discriminated against each of them in contravention of s 9 of the Racial Discrimination Act 1975 (Cth) through the payment by the respondent to any manifestation of the Christian Brethren Church including the Christian Brethren of Australia Inc. of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled.

2. Leave be granted to the applicants to extend time for the filing of the application for leave to appeal until 20 October 2006.

3. The costs of and incidental to the application for leave to appeal and the application for leave to extend time be costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

Full text does not contain this section.

BETWEEN:	DAPHNE FOSTER First Applicant CHRISTINE NED Second Applicant
AND:	STATE OF QUEENSLAND Respondent
BETWEEN:	MICHAEL BISMARK First Applicant DAPHNE FOSTER Second Applicant JEAN FRASER Third Applicant GLORIA FRIDAY Fourth Applicant NOREEN GEORGE Fifth Applicant EDWARD DAVID JOHNSON Sixth Applicant KAREN JUPITER Seventh Applicant CHRISTINE NED Eighth Applicant ELEANOR O'KEEFE Ninth Applicant
ELSA JOAN PETER Tenth Applicant
ERICA COLLEEN PETER Eleventh Applicant
AVIS SAMBO Twelfth Applicant
ROBYN ANN SANDY Thirteenth Applicant
WINSOME WALDEN Fourteenth Applicant
BARBARA LILIAN WALDEN Fifteenth Applicant
AND:	STATE OF QUEENSLAND Respondent

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD420 OF 2006

JUDGE:	GREENWOOD J
DATE OF ORDER:	5 DECEMBER 2006
WHERE MADE:	BRISBANE